Ex Parte Williams

• Decision Date: 16 December 1890
• Parties: Ex parte WILLIAMS.
• Court: Florida Supreme Court

8 So. 425

26 Fla. 310

Ex parte WILLIAMS.

Florida Supreme Court

December 16, 1890

Habeas corpus.

Syllabus by the Court

SYLLABUS

1. A court may suspend sentence on conviction of an offender because of mitigating circumstances, or the pendency of another indictment, or other sufficient cause; but it does not follow from suspension that a sentence may not be pronounced afterwards.

2. A convict cannot be subjected to two sentences for the same offense, but an order to pay costs, with further suspension of sentence, will not of itself take away the power of the court to pronounce sentence at a subsequent term when a different judge is presiding.

3. The passing of a term of court at which a pending case is not docketed nor called, is not a discontinuance of the case, if these is a general order of continuance of all cases not otherwise disposed of.

4. If the court still has jurisdiction of the case, and another than the trial judge afterwards presiding passes sentence, if there is error in such sentence it cannot be corrected by habeascorpus, but by writ of error.

COUNSEL T. L. Clarke and R. C. Long, for petitioner.

W. B. Lamar, atty. Gen., for the State.

OPINION

MAXWELL, J.

The facts set forth in the petition of Williams are that at the fall term, 1889, of the circuit court for Jefferson county he was tried for the larceny of a steer, and convicted. That at said term he was sentenced by Hon. J. F. McCLELLAN, the judge then presiding in said court, in these words: 'It is considered by the court that you, Ephraim Williams, for your said offense do pay the costs of this proceeding, as well as a fee of ten dollars to the state's attorney, and that further sentence be postponed until the next term of this court.' That upon complying with said sentence he was released from custody. That at the next term of said court (spring term, 1890) he was present and remained in attendance the entire term, but the said cause against him was not on the docket, and not called at said term, and the court adjourned without having passed further sentence; and he claims that he was thereby discharged without day. At the ensuing fall term of said court, 1890, the Honorable DAVID S WALKER, the judge thereof, ordered the sheriff to take him (Williams) into custody, and the sheriff, having done so, led him to the bar; whereupon the judge asked him if he had anything further to say why sentence should not be passed upon him for the said offense of larceny of which he had been formerly convicted as aforesaid, to which he answered, by his attorneys, that the court was without jurisdiction to pass any sentence upon him: (1) Because he was not in custody under any process of court; (2) because there was no criminal charge pending against him in said court; and (3) because of the facts hereinbefore stated, upon which he claims that he was discharged without day. And his said attorneys moved on these grounds that he be discharged, but the court denied the motion, and sentenced him to two years at hard labor in the state's prison. He comes here asking a discharge from the custody of the lessee of convicts under said sentence, because he is in such custody without lawful authority.

E. B Bailey, lessee of convicts, makes return to the writ, after reciting the conviction of Williams in 1889, and the action of the court thereon, as stated in the petition; that at the spring term, 1890, of said court there was a general order of court that 'all matters and things not otherwise disposed of be continued to the next term of court;' that at the November term, 1890, Williams was sentenced to two years' imprisonment, as stated in the petition, and that he was placed in custody of respondent by the sheriff of Jefferson county by virtue of a commitment thereafter issued by the clerk of said court a copy of which is a attached to the return.

That sentence may be suspended on conviction of an offender, because of mitigating circumstances, or the pendency of another indictment, or other sufficient cause, is not denied, and in practice is frequently done in this state and in other states is held to be permissible. Com. v. Dowdican's Bail, 115 Mass. 133; State v. Addy, 43 N. J. Law, 113. And it does not follow necessarily from suspension that a sentence may not be pronounced afterwards. But in this case it is argued that the order or sentence of Judge McCLELLAN at the fall term, 1889, was not a simple suspension of sentence, but was itself a sentence, and that the court had no power to adjudge a further penalty. If this view can be sustained it is on the ground that the law does not allow two sentences for the same offense. This is undoubtedly the law, and the only question here is whether the sentence referred to is one which comes within its reason and meaning. It is an order merely for the payment of costs, the fee of the state's attorney being a part thereof, and then a postponement of further sentence. The purpose of the law is to prevent punishment of a person twice for the same offense. All persons are as much entitled to this protection as they are to protection against being twice put in jeopardy for the same offense, and the right to both is in this county a sacred and fundamental one. Is the sentence a violation of this right? It will be found upon examination of the authorities cited to sustain the position of petitioner that, in every case where the court overruled the action of the lower court, there were two sentences, each imposing a penalty prescribed for the offense, and thus two distinct punishments; and that where the sentence was changed at the same term of court, as the law permits so long as execution of punishment has not commenced under the first sentence, the change was condemned because the punishment had been put in course of execution, or had been fully executed. See Ex parte Lange, 18 Wall. 163; Com. v. Foster, 122 Mass. 317; State v. Addy, 43 N. J. Law, 113; Brown v. Rice, 57 Me. 55; State v. Davis, 31 La. Ann. 249. But to have this effect we understand that the first sentence must inflict the whole or some part of the penalty prescribed for the offense. For instance, in the case of State v. Addy, supra, where the party was convicted of a nuisance in obstructing a culvert, and the penalty of the law was fine or imprisonment, and also condemnation to abate the nuisance, and the court suspended sentence on payment of the costs and abatement of the nuisance, but afterwards sentenced the party to imprisonment in jail, it was held that, as the abatement of the nuisance was a part of the penalty, the sentence to do that was such sentence in the case that the second sentence to imprisonment, though it might have been included in the first, was illegal. But on looking into the opinion of the court it will be seen that the matter of payment of costs had nothing to do with its decision; and we find no case where a requirement to pay costs, with suspension of further sentence, is treated as a sentence in such sense as to forbid a subsequent sentence imposing the penalty prescribed by law for...